« ForrigeFortsett »
and nutritious, proceeded as follows: "It is entirely consistent with that offer, that many, indeed, that most, kinds of oleomargarine butter in the market contain ingredients that are or may become injurious to health. The court cannot say, from anything of which it may take judicial cognizance, that such is not the fact. Under the circumstances disclosed in the record, and in obedience to settled rules of constitutional construction, it 27 must be assumed that such is the fact.
establishes that the statute in question is a constitutional exercise of the police power of the state, unless it can be considered as affected by the power to regulate commerce, as granted to or exercised by Congress under the Constitution of the United States.
The act of Congress of August 2, 1886, chap. 840, imposing internal revenue taxes upon manufacturers and sellers of oleomargarine, and defining what shall be considered as oleomargarine for the purposes of that act, expressly provides, in § 3, that § 3243 of the Revised Statutes, so far as applicable, shall apply to such taxes and persons. 24 Stat. at L. 209. By § 3243 of the Revised Statutes, "the payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any state for carrying on the same within such state, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such state or in places prohibited by municipal law; nor shall the payment of any such tax be held to prohibit any state from plac ing a duty or tax on the same trade or busi
Whether the manufacture of oleomargarine or imitation butter, of the kind described in the statute, is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy, which belong to the legislative department to determine. And as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights se-ness, for state or other purposes." cured by the fundamental law, the legislative As was said by this court in Plumley v. determination of those questions is conclu- Massachusetts, 155 U. S. 461 [39:223]: "It sive upon the courts. It is not a part of is manifest that this section was incortheir functions to conduct investigations of facts entering into questions of public policy merely, and to sustain or frustrate the leg islative will, embodied in statutes, as they may happen to approve or disapprove its determination of such questions. The legislature of Pennsylvania, upon the fullest investigation, as we must conclusively presume, and upon reasonable grounds, as must be assumed from the record, has determined that the prohibition of the sale, or offering for sale, or having in possession to sell, for purposes of food, of any article manufactured out of oleaginous substances or compounds, other than those produced from un- to oleomargarine intended as a regulation of adulterated milk, or cream from unadulter-commerce among the states. Its provisions do ated milk, to take the place of butter pro- not have special application to the transfer of duced from unadulterated milk, or cream oleomargarine from one state of the Union to from unadulterated milk, will promote the another. They relieve the manufacturer or public health, and prevent frauds in the sale seller, if he conforms to the regulations preof such articles." 127 U. 8. 684-686 scribed by Congress or by the Commissioner [32: 256, 257]. of Internal Revenue under the authority conThat decision appears to us to establish ferred upon him in that regard, from penalty that the courts cannot take judicial cogni- or punishment so far as the general governzance, without proof, either that oleomargar-ment is concerned, but they do not interfere ine is wholesome or that it is unwholesome; with the exercise by the states of any authorand we are unable to perceive how judiciality they possess of preventing deception or cognizance of such a fact can be acquired by referring to the various opinions which have found expression in scientific publications, or in testimony given in cases before other courts and between other parties.
*Evidence that the articles sold were wholesome and nutritious having been excluded as immaterial, when offered in defense in Powell's Case, it necessarily follows that the commonwealth in the case at bar had no occasion to offer evidence to prove the contrary.
The decision in Powell's Case conclusively
porated into the act of August 2, 1886, to
fraud in the sales of property within their respective limits." 155 U. S. 466, 467 [39: 225]. "If there be any subject over which it would seem the states ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may, indeed, indirectly or incidentally affect trade in such products transported from one state to another state. But that circumstance does not
show that laws of the character alluded to are inconsistent with the power of Congress to regulate commerce among the states." 155 U. S. 472 [39: 227].
2. A state law which necessitates and provides for adulteration of an article of commerce. and enforces upon the importer the necessity of adding a foreign substance to his article, which is thereby rendered unsalable, in order that he may be permitted lawfully to import and sell it, is an unlawful restriction of com
fran.ed, its purpose must be determined by its natural and reasonable effect.
In Plumley's Case, it was accordingly adjudged by this court, affirming the judgment of the supreme judicial court of Massachusetts, that a statute of Massachusetts, impos- 3. In whatever language a statute may be ing a penalty on the manufacture, sale, offering for sale, or having in possession with intent to sell, "any article, product, or compound made wholly or partly out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk, or cream from the same, which shall be in imitation of yellow butter produced from pure and unadulterated milk, or cream from the same," was constitutional and valid, as applied to sales in Massachusetts of oleomargarine made in another state, artificially colored so as to look like yellow butter, and imported in the packages in which it was sold.
The necessary result of the decisions in Powell's Case and in Plumley's Case and of the reasoning upon which those decisions  *were founded, and by which alone they can be justified, appears to us to be that each state may, in the exercise of its police power, without violating the provisions of the Constitution and laws of the United States concerning interstate commerce, inake such regulations relating to all sales of oleomargarine within the state, even in original packages brought from another state, as the legislature of the state may deem necessary to protect the people from being induced to purchase articles, either not fit for food, or differing in nature from what they purport to be; that the questions of danger to health, and of likelihood of fraud or deception and of the preventive measures required for the protection of the people, are questions of fact and of public policy, the determination of which belongs to the legislative department, and not to the judiciary; and that, if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots, or packages in which it is commonly offered for sale, it looks so like butter that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do
CLARENCE E. COLLINS, Plff. in Err.,
STATE OF NEW HAMPSHIRE.
Power of a state-purpose of a statute- re
1. Where the state has not the power to absolutely prohibit the sale of an article of commerce, like oleomargarine in its pure state, it has no power to provide that such article shall be colored, or rather discolored, by adding a foreign substance to it, in the manner described in the New Hampshire statute.
Although under the wording of such statute the importer is permitted to sell oleomargarine freely and to any extent, provided he colors it pink, yet the permission to sell, when accompanied by the imposition of a condition which, if complied with, will effectually prevent any sale, amounts in law to a prohibition.
The statute of New Hampshire making it unlawful to sell or keep in possession, with intent to sell in said state, any oleomargarine unless it is of a pink color, when applied to oleomargarine imported into that state from another state for sale, is invalid.
Argued March 23, 24, 1898. Decided May 23, 1898.
IN ERROR to the Supreme Court of the State of New Hampshire to review the judg ment of that court sustaining a conviction of Clarence E. Collins of a violation of the statute of that state prohibiting the sale of oleomargarine unless it is of a pink color. Reversed, and case remanded for further pro ceedings.
The facts are stated in the opinion.
Messrs. William D. Guthrie, Richard C.
Dale, Henry R. Edmunds, and Albert H.
No brief filed for defendant in error but Mr. John G. Johnson was for the defendant in error in Schollenberger v. Pennsylvania, 171 U. S. 1 (ante, 49), which was argued with this case.
Mr. Justice Peckham delivered the opinion of the court:
This case comes here by virtue of a writ of error to the supreme court of the state of New Hampshire, by which we are called upon to review the judgment of that court sustaining a conviction of the plaintiff in error in the court of first instance of a violation of the public statutes of the state, prohibiting the sale of oleomargarine as a substitute for butter unless it is of a pink color. The law is to be found in §§ 19 and 20, chap. 127, Fublic Statutes 1891. The two sections are set forth in the margin.t
† Sec. 19. It shall be unlawful to sell, offer for sale, or keep in possession with intent to sell, in this state, any substance or compound made wholly or in part of fats, olls, or grease, not produced from milk or cream, in imitation of, or as a substitute for, butter or cheese. unless the same is contained in tubs, firkins, boxes, or other packages, each of which has upon it, to indicate the character of its contents, the words "Adulterated butter," "Oleomargarine," or "Imitation cheese" as the case may be, in plain Roman letters not less than one half inch in length, and so placed and made or attached
The plaintiff in error was convicted of sell ing a package of *oleomargarine not of pink color, in violation of the statute, and was sentenced to pay a fine of $100, and to pay the costs of prosecution, and to stand committed until sentence was performed.
The following are the facts appearing in the record:
"The respondent is agent at Manchester of Swift & Co., an Illinois corporation, having its principal place of business in Chicago. The corporation manufactures oleomargarine and puts it up in packages in Chicago, and distributes the packages from there to different places-one of which is Manchester -where it maintains stores and sells the article at wholesale in the original packages. It has paid the special United States taxes imposed by the act of Congress of August 2, 1886 (Supp. to R. S. of U. S., v. 1, p. 505), and has complied with all other requirements of that act in respect to the manufacture and sale at wholesale of oleomargarine. The article has the color of butter, the same coloring matter being used to color it that is frequently used to color butter, and is made wholly or in part of fats, oils, or grease not produced from milk or cream, in imitation of or as a substitute for butter. It is not manufactured in this state. The respondent as such agent sold in Manchester, at wholesale, at the store of the company, a package of said article weighing 10 pounds in the form it was put up in Chicago by his principal. The provisions of § 19, chap. 127, Public Statutes of this state, were complied with, so far as the package was concerned, except the color of its contents was not pink. The oleomargarine sold was the oleomargarine of commerce as the same is known and dealt in as an article of food.
ute under which he was indicted and convicted is void, because in contravention of the Constitution of the United States, which gives power to Congress "to regulate commerce with foreign nations and among the several states and with the Indian tribes."
We think this case comes within the principle of the cases just decided regarding the statute of the commonwealth of Pennsyl vania prohibiting the introduction of oleomargarine into that commonwealth. Thi statute is in its practical effect prohibitory. It is clear that it is not an inspection law in any sense. It provides for no inspection, and it is apparent that none was intended. The act is a mere evasion of the direct prohibition contained in the Pennsylvania statute, and yet, if enforced, the result, within the state, would be quite as positive in the total suppression of the article as is the case with the Pennsylvania act.
In a case like this it is entirely plain that if the state have not the power to absolutely prohibit the sale of an article of commerce like oleomargarine in its pure state, it has no power to provide that such article shall be colored, or rather discolored, by adding a foreign substance to it, in the manner described in the statute. Pink is not the color of oleomargarine in its natural state. The act necessitates and provides for adulteration. It enforces upon the importer the necessity of adding a foreign substance to his article, which is thereby rendered unsalable, in order that he may be permitted lawfully to sell it. If enforced, the result could be foretold. To color the substance as provided for in the statute naturally excites a prejudice and strengthens a repugnance up to the point of a positive and absolute refusal to purchase the article at any price. The direct and nec"The respondent claimed that upon these essary result of a statute *must be taken into  facts he was not guilty, because the statute consideration when deciding as to its validof this state is in contravention of the Con-ity, even if that result is not in so many stitution of the United States and its amendments and of the laws of Congress; otherwise he admitted his guilt. The court ruled against the respondent as to the above claim, and he excepted."
It was stated on the argument that since the conviction of the plaintiff in error the statute above cited had been repealed, but that such repeal did not affect the conviction,  because of the provision made in the New Hampshire statutes that "no suit or prosecution, pending at the time of the repeal of an act, for any offense committed or for the recovery of a penalty or forfeiture incurred, under the act so repealed, shall be affected by such repeal." We are therefore called upon to determine the validity of the conviction. The plaintiff in error claims that the statthat they can be readily seen and read and cannot be easily defaced; and if the substance or compound is a substitute for cheese, unless the cloth surrounding it has 2 like inscription; and if it is a substitute for butter, unless it is of a pink color. When any such substance or compound is sold in less quantities than the original packages contain, the seller shall dever to the purchaser with it a label bearing the words indicating its character as above, in like letters.
words either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. Henderson v. Mayor of New York [Henderson v. Wickham], 92 U. S. 259 [23: 543]; Morgan's L. & T. R. & S. S. Co. v. Louisiana Bd. of Health, 118 U. S. 455, at 462 [30: 237, 241]. Although under the wording of this statute the importer is permitted to sell oleomargarine freely and to any extent, provided he colors it pink, yet the permission to sell, when accompanied by the imposition of a condition which, if complied with, will effectually prevent any sale, amounts in law to a prohibition.
If this provision for coloring the article were a legal condition, a legislature could
Sec. 20. If any person shall sell, or offer for sale, or keep in possession with intent to sell, in this state, any substance or compound of the kinds described in the preceding section in a manner that is made unlawful by said section, or shall sell, offer for sale, or keep in possession with intent to sell, any such substance or compound without disclosing its true character, he shall be fined not more than one hundred dollars, or be imprisoned not more than sixty days,
fully did conceal and aid in the concealment of distilled spirits on which the tax had not been paid, which said spirits had been removed to a place other than the distillery warehouse provided by law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."
not be limited to pink in its choice of colors. | oaths aforesaid, do further present, that, at The legislative fancy or taste would be bound-the time and place and within the jurisdicless. It might equally as well provide that tion aforesaid, the said George Pounds unlawit should be colored blue or red or black. Nor do we see that it would be limited to the use of coloring matter. It might, instead of that, provide that the article should only be sold if mixed with some other article which, while not deleterious to health, would nevertheless give out a most offensive smell. If the legislature have the power to direct that the article shall be colored pink, which can only be accomplished by the use of some foreign substance that will have that effect, we "Whenever any person removes, or aids or do not know upon what principle it should be abets in the removal of, any distilled spirits confined to discoloration, or why a provision on which the tax has not been paiu, to a place for an offensive odor would not be just as other than the distillery warehouse provided valid as one prescribing the particular color. by law, or conceals, or aids in the concealThe truth is, however, as we have above stat-ment of, any spirits so removed, or removes, ed, the statute in its necessary effect is pro- or aids or abets in the removal of, any dishibitory, and therefore upon the principle tilled spirits from any distillery warehouse, recognized in the Pennsylvania cases it is invalid.
The judgment of the Supreme Court of New Hampshire is reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.
The count was drawn under § 3296 of the Revised Statutes, which provides that:
or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the  concealment of any spirits so removed, he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than Mr. Justice Harlan and Mr. Justice two hundred dollars nor more than five thouGray dissented.
 GEORGE POUNDS, Plff. in Err.,
(See S. C. Reporter's ed. 35-38.)
sand dollars, and imprisoned not less than three months nor more than three years."
After the verdict, and before the judgment, the plaintiff in error filed his motion in arrest of judgment, as follows:
"Now comes the defendant after the rendition of the verdict of the jury finding him guilty as charged in the sixth count of the indictment and before judgment and sentence,
Indictment for concealing distilled spirits—and moves the court to arrest the judgment
separation of jury.
1. An indictment in the language of U. S. Rev.
other than the distillery warehouse provided
2. A claim that a jury separated before the
parties, in open court and in the presence of
in this case, upon the ground that the sixth count of the indictment is too vague and uncertain to authorize a judgment and sentence against the defendant."
Afterwards an amended motion in arrest
of judgment was filed, as follows:
"By leave of the court first had and obtained the defendant amends his motion in arrest of judgment by adding the following grounds:
"First. The said sixth count of the indictment fails to show that there was a warehouse provided by law to which the spirits alleged to have been concealed should have been removed.
"Second. That the jury separated before the Submitted May 6, 1898. Decided May 23, verdict of the jury was returned into court."
IN ERROR to the District Court of the United States for the Northern District of Alabama to review a judgment convicting George Pounds for concealing distilled spirits on which the tax had not been paid. Affirmed.
Statement by Mr. Justice McKenna: The indictment under which the defendant (plaintiff in error) was tried contained fifteen counts. He was convicted on the sixth count, which read as follows:
"The grand jurors aforesaid, upon their
The overruling of this motion is assigned
Mr. J. A. W. Smith for plaintiff in error. Mr. James E. Boyd, Assistant Attorney General, for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
Section 3271 of the Revised Statutes provides that "every distiller shall provide, at his own expense, a warehouse, to be situated  on and to constitute a part of his distillery premises, and to be used only for the storage of distilled spirits of his own manufacture
until the tax thereon shall have been paid; [of judgment, it is enough to say that there is and such warehouse, when approved nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by ne jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Commonwealth v. Carrington, 116 Mass. 37.
by the Commissioner of Internal Revenue, on report of the collector, is hereby declared to be a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district, and in charge of an internal revenue storekeeper, assigned thereto by the Commissioner."
Section 3287 provides that all distilled spirits shall be drawn from the receiving cisterns into casks of a designated capacity and the quantity of spirits marked thereon, "and shall be immediately removed into the distillery warehouse," and stamps designating the quantity of spirits shall be applied thereto.
The judgment is affirmed.
WALTER H. HARRISON, Plff. in Err.,
FRANKLIN J. MORTON.
will not review it.
Other sections provide that no distilled spirits upon which the tax has been paid Review of state judgment-when this court shall be stored or allowed to remain on any distillery premises, and such spirits found in a cask containing 5 gallons or more without having the stamp required by law shall be forfeited.
To secure the enforcement of this provision,
Plaintiff in error says:
(See S. C. Reporter's ed. 38-47.)
1. To give this court Jurisdiction to review state judgment, a Federal question must have been presented to the state court and decided adversely to the party claiming the Federal right, or it must appear that the judgment could not have been rendered without deciding such question.
This court will not review a state judg ment, although a Federal question was decided adversely to the plaintiff in error, if another question, not Federal, was also raised and decided against him, the decision of which is sufficient to sustain the judgment.
"It seems clear that section 3296 of the Revised Statutes intended to provide a punishment for a distiller who had complied with the various provisions of chapter four of the Revised Statutes, and had provided a warehouse as required by section 3271, and then concealed or aided in the concealment of distilled spirits which had been removed, the tax not having been paid, to a place other than the distillery warehouse so provided." And it hence claimed that the indictment is Argued May 2, 3, 1898. Decided May 23, too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed should have been stored until the tax was paid. Undoubtedly, the statute was intended to punish a distiller who violated its provisions. It was also intended to punish any  one else who did, and the offense could be committed by a removal of spirits from the premises before storage in the distillery warehouse or by concealment of the spirits so removed. And it is this concealment which the indictment charges, and it sufficiently alleges the existence of a warehouse. It also alleges that the tax had not been paid. The offense was purely statutory. In such case it is generally sufficient to charge the defendant with acts coming within the statutory description in the substantial words of the statute without any further expansion of the matter. United States v. Simmons, 96 U. S. 360 [24: 819]; United States v. Britton, 107 U. S. 655 [27:520].
One of the acts which is made an offense by § 3296 is the concealment of distilled spirits on which the tax has not been paid, removed to a place other than the distillery warehouse provided by law. The indictment charges in the language of the statute the performance of that act at a particular time and place. It was therefore sufficiently certain.
As to the second ground of motion in arrest
State of Maryland to review a judgment of
Statement by Mr. Justice McKenna: This suit was brought by the plaintiff in error Harrison against the defendant in error on the 8th of February, 1895, in the Baltimore city court, to recover the sum of $300,000 seal for the sale of certain patent rights. damages for the breach of a contract under
Under the alleged contract the plaintiff in error sold, and the defendant in error bought
NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises or where are drawn in question statutes, treaty, ter, 4: 97; Matthews v. Zane, 2: 654; and Willor Constitution,-sce notes to Martin v. Ilualams v. Norris, 6:571.
As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws -see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169.